In re L.S. , 2011 Ohio 3836 ( 2011 )

[Cite as In re L.S., 2011-Ohio-3836.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95809
IN RE: L.S.
Minor Child
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 08934589
BEFORE: Cooney, J., Stewart, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: August 4, 2011
ATTORNEY FOR APPELLANT
Gregory T. Stralka
2
Crown Centre Suite 600-30
5005 Rockside Road
Cleveland, Ohio 44131
ATTORNEYS FOR APPELLEE
For C.C.D.C.F.S.
William D. Mason
Cuyahoga County Prosecutor
Gregory S. Millas
Assistant County Prosecutor
8111 Quincy Avenue, Room 444
Cleveland, Ohio 44104
For Mother
Denise Rini
Bartos & Rini, LPA
13363 Madison Avenue
Lakewood, Ohio 44107
GUARDIAN AD LITEM
For Child
Joseph J. Jacobs
Jacobs Legal Group
15614 Detroit Avenue, Suite 6
Lakewood, Ohio 44107
For Mother
Thomas Kozel
P.O. Box 534
North Olmsted, Ohio 44070-0534
COLLEEN CONWAY COONEY, J.:
3
{¶ 1} Appellant, B.S. (“father” or “B.S.”), appeals the trial court’s order granting
permanent custody of his minor child, L.S. (“the child” or “L.S.”), to appellee, Cuyahoga
County Department of Children and Family Services (“the agency”). Finding no merit to the
appeal, we affirm.
{¶ 2} In June 2008, L.S. (born September 2005) was removed from his mother’s
home and placed in the emergency custody of the agency. The case proceeded to trial.
Both mother and father stipulated to the allegations contained in the complaint. In September
2008, a magistrate adjudicated L.S. neglected and abused and committed the child to the
temporary custody of the agency.
{¶ 3} The mother’s case plan for reunification with the child required her to complete
a drug and alcohol assessment and treatment, participate in domestic violence and mental
health services, and obtain appropriate housing. Mother actively participated in her case plan
and was reunited with L.S. in June 2009. The agency anticipated a termination of the
temporary custody. However, just days after losing her housing, mother returned L.S. to the
foster placement, and the agency’s motion to terminate temporary custody was denied. In
accordance with two extensions of temporary custody, L.S. remained in temporary custody
until March 2010. Despite her initial attempts, mother had failed to comply with her case
4
plan and the agency sought permanent custody. At the time of the hearing, B.S. was
incarcerated in Kentucky, but had been served with the agency’s motion for permanent
custody. Despite having been served, he did not request to be present at the hearing. The
trial court granted the agency’s motion, awarding permanent custody of L.S. to the agency.
{¶ 4} It is from this order that B.S. now appeals.
{¶ 5} In his first assignment of error, B.S. argues that the agency failed to establish by
sufficient evidence that he was repeatedly incarcerated and unable to provide care for his
child. In his second assignment of error, B.S. argues that the findings by the trial court
granting permanent custody were against the manifest weight of the evidence. These
assignments of error address the same facts and pertinent law, and will therefore be addressed
together.
{¶ 6} When reviewing a trial court’s judgment in child custody cases, the appropriate
standard of review is whether the trial court abused its discretion. Masters v. Masters, 69
Ohio St. 3d 83, 1994-Ohio-483, 630 N.E.2d 665. An abuse of discretion is more than an error
of law or judgment; it implies that the court’s attitude was unreasonable, arbitrary, or
unconscionable. Miller v. Miller (1988), 37 Ohio St. 3d 71, 73, 523 N.E.2d 846. An
appellate court must adhere to “every reasonable presumption in favor of the lower court’s
judgment and finding of facts.” In re Brodbeck (1994), 97 Ohio App. 3d 652, 659, 647
5
N.E.2d 240, quoting Gerijo, Inc. v. Fairfield, 70 Ohio St. 3d 223, 226, 1994-Ohio-432, 638
N.E.2d 533.
{¶ 7} Where clear and convincing proof is required at trial, a reviewing court will
examine the record to determine whether the trier of fact had sufficient evidence before it to
satisfy the requisite degree of proof. In re T.S., Cuyahoga App. No. 92816, 2009-Ohio-5496,
¶24, citing State v. Schiebel (1990), 55 Ohio St. 3d 71, 74, 564 N.E.2d 54. Judgments
supported by competent, credible evidence going to all the essential elements of the case will
not be reversed as being against the manifest weight of the evidence. Id.
{¶ 8} Clear and convincing evidence is “that measure or degree of proof which is
more than a mere ‘preponderance of the evidence’ but not to the extent of such certainty
required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of
the trier of facts a firm belief or conviction as to the facts sought to be established.” In re
Awkal (1994), 95 Ohio App. 3d 309, 315, 642 N.E.2d 424, citing Lansdowne v. Beacon
Journal Pub. Co. (1987), 32 Ohio St. 3d 176, 180-181, 512 N.E.2d 979.
{¶ 9} Further, issues relating to the credibility of the witnesses and the weight to be
given the evidence are primarily for the trier of fact. Bechtol v. Bechtol (1990), 49 Ohio
St.3d 21, 23, 550 N.E.2d 178; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 80,
461 N.E.2d 1273.
6
{¶ 10} R.C. 2151.414 sets forth a two-prong analysis to be applied by the juvenile
court for a determination of whether permanent custody should be granted to an agency. The
statute requires the court to find, by clear and convincing evidence, (1) one of the factors
enumerated in R.C. 2151.414(B)(1)(a)-(d), and (2) an award of permanent custody is in the
best interest of the child.
{¶ 11} In regard to the first prong, R.C. 2151.414(B)(1)(a)-(d) provides:
“(B)(1) Except as provided in division (B)(2) of this section, the court may grant
permanent custody of a child to a movant if the court determines at the hearing held
pursuant to division (A) of this section, by clear and convincing evidence, that it is in
the best interest of the child to grant permanent custody of the child to the agency that
filed the motion for permanent custody and that any of the following apply:
“(a) The child is not abandoned or orphaned, has not been in the temporary custody of
one or more public children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period, or has not been in
the temporary custody of one or more public children services agencies or private child
placing agencies for twelve or more months of a consecutive twenty-two-month period
if, as described in division (D)(1) of section 2151.413 of the Revised Code, the child
was previously in the temporary custody of an equivalent agency in another state, and
the child cannot be placed with either of the child’s parents within a reasonable time or
should not be placed with the child’s parents.
“(b) The child is abandoned.
“(c) The child is orphaned, and there are no relatives of the child who are able to take
permanent custody.
7
“(d) The child has been in the temporary custody of one or more public children
services agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period, or the child has been in the temporary custody
of one or more public children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period and, as described in
division (D)(1) of section 2151.413 of the Revised Code, the child was previously in
the temporary custody of an equivalent agency in another state.”
{¶ 12} In the instant case, the trial court satisfied the first prong on numerous grounds.
First, the trial court found that L.S. had been in agency custody for at least 12 months of a
consecutive 22-month period, pursuant to R.C. 2151.414(B)(1)(d). At the time of the
permanent custody hearing, L.S. had in fact been in custody for over 20 months. In addition,
the trial court found that the child could not be placed with either parent within a reasonable
time, pursuant to R.C. 2151.414(B)(1)(a), based on the report from the guardian ad litem and
the testimony of the social workers. Having failed to comply with his case plan and due to
his incarceration, B.S. did not have appropriate housing available for L.S.
{¶ 13} The agency social worker testified that in the course of the case, father had been
chronically homeless and imprisoned on numerous occasions. She testified that father had
not complied with his case plan during the periods of time he was not in prison. He tested
8
positive for marijuana in one drug test and had failed to attend numerous substance abuse
assessments for which he was scheduled. The trial court also found that the child had been
abandoned, pursuant to R.C. 2151.414(B)(1)(b). Thus, the first prong was satisfied by clear
and convincing evidence.
{¶ 14} The second prong requires the trial court to make the finding that permanent
custody is in the best interest of the children pursuant to R.C. 2151.414(D)(1) through (5),
which state:
“(1) The interaction and interrelationship of the child with the child’s parents, siblings,
relatives, foster caregivers and out-of-home providers, and any other person who may
significantly affect the child;
“(2) The wishes of the child, as expressed directly by the child or through the child’s
guardian ad litem, with due regard for the maturity of the child;
“(3) The custodial history of the child, including whether the child has been in the
temporary custody of one or more public children services agencies or private child
placing agencies for twelve or more months of a consecutive twenty-two month period
ending on or after March 18, 1999;
“(4) The child’s need for a legally secure permanent placement and whether * * * [it]
can be achieved without a grant of permanent custody to the agency;
“(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in
relation to the parents and child.”
9
{¶ 15} This court has found that only one of these enumerated factors needs to be
resolved in favor of the award of permanent custody. In re Moore (Aug. 31, 2000),
Cuyahoga App. No. 76942, citing, In re Shaeffer Children (1993), 85 Ohio App. 3d 683, 621
N.E.2d 426; see, also, In re M.Z., Cuyahoga App. No. 80799, 2002-Ohio-6634; In Re Legg,
Cuyahoga App. Nos. 80542 and 80543, 2002-Ohio-4582.
{¶ 16} In the instant case, the trial court stated in its journal entry that it had considered
all the relevant factors pursuant to R.C. 2151.414(D) in determining the best interest of the
child. The record shows that the child had been in custody for 12 or more months of a
consecutive 22-month period. In addition, the record described the lack of interactions with
the father during the vast majority of the child’s time in custody. Although L.S. was too
young to voice his own desires, the trial court found that he is “entitled to stability and a
legally secure placement.” The court further found that this could only be achieved through
permanent custody. In light of all the evidence, the trial court properly found that permanent
custody was in the child’s best interest.
{¶ 17} The trial court’s determination to award permanent custody to the agency was
based on clear and convincing evidence. This evidence included reports and testimony
describing B.S.’s repeated incarcerations and inability to care for L.S. The termination of
parental rights was supported by sufficient evidence and was not against the manifest weight
10
of the evidence. Therefore, we find no abuse of discretion by the trial court in granting
permanent custody to the agency.
{¶ 18} Accordingly, the first and second assignments of error are overruled.
{¶ 19} In his third assignment of error, B.S. argues that the trial court abused its
discretion when it failed to grant the guardian ad litem’s request for a continuance to
investigate relatives of the child.
{¶ 20} Juv.R. 23 provides that “[c]ontinuances shall be granted only when imperative
to secure fair treatment for the parties.” Further, Loc.R. 49(C) of the Juvenile Division
states: “No case will be continued on the day of trial or hearing except for good cause shown,
which cause was not known to the party or counsel prior to the date of trial or hearing, and
provided that the party and/or counsel have used diligence to be ready for trial and have
notified or made diligent efforts to notify the opposing party or counsel as soon as he/she
became aware of the necessity to request a postponement. This rule may not be waived by
consent of counsel.”
{¶ 21} The grant or denial of a continuance is a matter that is entrusted to the broad,
sound discretion of the trial judge, and an appellate court must not reverse the denial of a
continuance unless there has been an abuse of discretion. State v. Unger (1981), 67 Ohio
St.2d 65, 67, 423 N.E.2d 1078; In re Zhang (1999), 135 Ohio App. 3d 350, 354, 734 N.E.2d
11
379; In re Miller, 3d Dist. No. 2-04-02, 2004-Ohio-3023. An abuse of discretion constitutes
more than an error of law or judgment and implies that the trial court acted unreasonably,
arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219, 450
N.E.2d 1140. When applying the abuse of discretion standard, a reviewing court may not
simply substitute its judgment for that of the trial court. Id.
{¶ 22} In the instant case, the guardian ad litem requested a continuance during the
permanent custody hearing in order to investigate potential out-of-state relatives. These
paternal relatives had come forward and voiced their desire to gain custody of L.S. However,
no motion for custody was filed with the court prior to the hearing. The trial court rejected
the guardian ad litem’s request, finding that:
{¶ 23} “[t]he Court cannot and will not delay permanency for this child for a minimum
of another six month[s] to a year in order to see if the paternal relatives in Massachusetts are a
suitable placement for only one of the brothers.”
1
{¶ 24} L.S.’s paternal grandfather testified during the hearing that his family had been
made aware of the agency’s motion for permanent custody in March 2010. The hearing was
held in July 2010, and yet no motion for custody by any extended family had been made prior
L.S. was in foster care with his infant brother. The two children share the same
1
biological mother, but do not share the same biological father.
12
to the hearing, nor had any visits been requested by the paternal extended family in the months
prior to the hearing.
{¶ 25} This court has repeatedly held that:
{¶ 26} “[t]he trial court is not required to consider placing the children with a relative
prior to granting permanent custody to CCDCFS. This court has previously held that the
willingness of a relative to care for a child does not alter what the court must consider in
determining permanent custody. In re Benavides (May 3, 2001), Cuyahoga App. No. 78204,
citing In re Patterson (1999), 134 Ohio App. 3d 119, 730 N.E.2d 439.” In re A.D., Cuyahoga
App. No. 85648, 2005-Ohio-5441, at ¶12.
{¶ 27} Thus, the trial court did not abuse its discretion by denying the late request for a
continuance.
{¶ 28} Accordingly, the third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
juvenile court to carry this judgment into execution.
13
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
__________________________________________
COLLEEN CONWAY COONEY, JUDGE
MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR